Company fined as Ireland’s first spam case concludes

1 Sep 2005

A company was sentenced for spamming in Ireland this afternoon, the first successful prosecution in this country for sending unsolicited phone or email messages.

The 4’s a Fortune service, which was operated by Tom Higgins of Manor Kilbride, Co Wicklow, founder of Irish Psychics Live, was found to have sent unsolicited messages to members of the public in March 2004. Since November 2003 under SI 535 of 2003 [European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003] the sending of unsolicited commercial mail from Ireland has in some instances been an offence.

The 4’s a Fortune operation worked by having employees call mobile numbers at random until they found a working phone. The call lasted for one or two rings before hanging up, giving recipients little chance of answering. Instead, on calling back they were told they had cash credit and were offered to dial a premium rate number to take part in a competition. The Data Protection Commissioner (DPC) argued that these callbacks constituted a message and as such came under the legislation governing spam.

Following a year-long investigation by the DPC, 4’s a Fortune entered a guilty plea in July of this year and the sentence was handed down yesterday at Richmond District Court in Dublin. The DPC said Higgins, who was a director of 4’s a Fortune had been co-operative and there had been no complaints against him since. His company was fined €300 for each of four complaints from mobile phone users who had received the missed call, plus costs of €1,000.

Sean Sweeney, spokesman for the DPC, said he was satisfied with the outcome of the case, although the award will not cover the costs of taking the case. “The important thing is, a conviction was registered against 4’s a Fortune,” Sweeney told siliconrepublic.com. “Hopefully it sends a message to others.”

According to Sweeney, Judge Anne Watkin had expressed surprise that the legislation didn’t allow a custodial sentence. In fact this option had been discussed when the legislation was originally before the cabinet two years ago. The fact that the judge classed the people receiving the calls as victims, coupled with her comments on custodial sentences showed how seriously she took the case, Sweeney added.

The DPC is currently investigating two other cases, both involving voice or text messages sent to mobile phones, which may result in prosecutions being taken. At present the office is investigating close to 100 cases in total, Sweeney confirmed.

As yet there has been no case of email spam in Ireland, although there have been complaints made to the DPC which are being or have been investigated. Most unsolicited email coming into Ireland originates from outside the country, making it extremely difficult to gather evidence to prosecute a case. Technically, it is hard to prove who is the original sender of spam, as many bulk mailing operations use techniques to disguise their source or use computers belonging to third parties who are often unaware that their machines have been compromised.